Indigenous and Northern Affairs Committee on May 7th, 2019

[The Chair, Liberal, MaryAnn Mihychuk]

If you submit a brief, we can receive it as a committee, so I encourage you. That's still open to you as well.

We'll suspend for a couple of minutes so that the next panel can come forward and take their seats, and then we'll readjust. Please remember that the headsets work better on the tabletop translation device rather than underneath. We will have questions in French. Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Good morning, everyone. We're going to call the meeting to order because, as you saw in the last group, we ran out of time. There are many important words to be said and questions to be delved into.

We're on the unceded territory of the Algonquin people. We are discussing indigenous child and family law, a bill called C-92. Before taking any more time, I want to thank everybody for coming out.

We will begin the presentations. You have up to 10 minutes. If you don't take that, it's fine. It gives us more opportunity for questions from the members.

We begin with the Conseil de la Nation Atikamekw. Then we're moving to the Inuit, and then to Sandy Bay.

Welcome, Natan, it's always nice to see you here.

We're going to start with Grand Chief Constant. It's nice to see you.

[Grand Chief Constant Awashish, Conseil de la nation Atikamekw]

Thank you, Madam Chair. I'm happy to be here again. It's my second time being here, but this time it's on a different matter.

Good morning, everyone.

My name is Constant Awashish, and I'm the grand chief of the Atikamekw nation. I'll share my thoughts on Bill C-92.

I can speak French, right? Does everyone understand?

[The Chair, Liberal, MaryAnn Mihychuk]

Does everyone have their earpiece?

I think we're good to go.

[Grand Chief Constant Awashish]

I could speak English as well, but some technical words will be difficult for me.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

You're doing well.

[Grand Chief Constant Awashish]

As first nations here in Canada, we all know what happened to us in the past. I think we've come to a time right now that we're at a crossroads: We work together or we keep fighting again for many generations.

For my part, I choose not to fight again. I will fight for our rights, yes, of course. I will fight for our recognition. I will fight so that we can enjoy living in peace here in Canada together. We have to foresee how life will be in the future. I think it's now the time—it doesn't matter whether you're Liberal, Conservative, or NDP—that you understand that you have to invest in first nations to ensure security, to ensure defence of our territory, to ensure that first nations have a sense of belonging to Canada and to ensure as well that first nations have a sense of stewardship towards Canada.

That's how we have to look at it from now on. So many of us are youth, and I say that everywhere. I'm starting to feel a little bit old, but 72% of my people are younger than I am. There are many people and there's a lot of potential. If we keep ignoring indigenous rights, we're just passing on more problems to them and to your kids and grandchildren as well. It doesn't matter, then, which party you're from. We all have to understand that we have to work together to ensure a better future for Canada, all together.

That's what I wanted to say before.

Canada recognizes that Indigenous peoples have the inherent right of self-government. This right includes legislative jurisdiction over child and family services.

Bill C-92 reaffirms this right, but adjusts its application. Although the legislation of the Indigenous governing body has the force of law, in the absence of a coordination agreement, it's difficult to see how the legislation would be applied.

An entity or authority could be designated to decide on the terms of the coordination agreement in the event of a dispute. This authority could be a two-headed authority, consisting of an Indigenous representative and a state representative, who should reach a joint decision.

In addition, proper funding is needed to enforce the provisions of the Indigenous legislation. In the case of child and family services, in the absence of guaranteed funding, the Indigenous authorities may adopt their own legislation. However, the legislation is unlikely to be implemented. It would be desirable to include a commitment to this effect in the legislation.

The minimum standards set out in Bill C-92 must also be met by Indigenous groups that adopt their own legislation. These clauses concern in particular the best interests of Indigenous children.

In the event of a dispute concerning the determination of the best interests of the Indigenous child, the state courts would make the decision. However, state courts reflect the culture of the dominant society. The application of this principle has led the courts to decide to place a number of Indigenous children in the care of non-Indigenous foster families without regard for the preservation of cultural identity.

The legislation says nothing about the grounds for which a child may be taken in certain situations by child and family services.

Will these grounds be the same as the grounds set out in the provincial legislation?

Could the Indigenous legislation include different grounds for intervention?

I'm already anticipating many issues with this part of the legislation.

Clause 13 of the bill states that the Indigenous governing body has the right to make representations in any civil proceedings.

The child and family services agencies are the most knowledgeable about the child's situation. As a result, it would be better if these agencies could intervene instead of the Indigenous governing body, which has more of a political role.

In addition, the legislation should be amended to establish the right of these service provider organizations to submit their observations, and not to make representations. The latter phrase is associated with party status, which isn't assigned by law to the Indigenous entity.

The bill's focus on an Indigenous child's living environment seems entirely appropriate. However, the bill under consideration could be amended to ensure a justification for the decision to place the child in the care of an adult who isn't a member of the child's family, community, nation or any other Indigenous community or nation. This is very important. The decision should provide reasons, from the start, describing all the efforts made to try to keep the child with their family. This should be added to the legislation.

I'll now turn the floor over to our expert legal counsel in this area. She has assisted us throughout the process.

For the people who don't know, the Attikamek nation is now a leader in child protection.

[Anne Fournier, Lawyer, Conseil de la nation Atikamekw]

Hello. Thank you for inviting us here today.

My presentation will be wide-ranging.

The definition of a family as appears in Bill C-92 is very interesting, because it takes into account the child's perception, traditional indigenous customs as well as whom indigenous peoples consider to be a close relative of the child. This is very positive and the bill is respectful of the various concepts of family within indigenous culture.

There is an entire section on the child's socio-economic conditions. In Canada, the fact that indigenous peoples suffer from unfavourable socio-economic conditions and overcrowded housing is well-known and well documented. These conditions constitute clinical risk factors to be taken into account when evaluating a child's situation.

While it is positive that the bill expressly mentions that the child must not be apprehended solely because of its socio-economic conditions, in the absence of concrete measures to improve living conditions for indigenous peoples, this section is meaningless in provinces like Quebec, where it is possible for the authorities to intervene on behalf of a child by citing a serious risk of negligence.

As to Jordan's principle, which I'm sure you all know very well, legislators are not in the habit of putting names in bills. However, we could perhaps make an exception here. Canada could apply this principle as it was defined by the tribunal to all children, regardless of their place of residence. We hope that the bill will mention that the Government of Canada recognizes Jordan's principle and commits to putting it into practice.

In subsection 12(1) of the bill, we find the notion of “significant measure”, whereby before any significant measure is taken in relation to the child, the service provider must provide notice of the measure to the child's parents and others. Basically, one wonders what is the significant measure. Perhaps that should be defined.

I will stop here.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. We did give you a bit of extra time.

I'm going to ask everybody to watch as the clock ticks away or we won't have enough time for questions.

We have the Inuit Tapiriit Kanatami with us. The president is here, as well as Jenny Tierney, manager.

We look forward to your comments. Please start whenever you're ready.

[Natan Obed, President, Inuit Tapiriit Kanatami]

Nakurmiik, Madam Chair.

Ulaakut. Good morning, everyone. It's good to be here.

Inuit Tapiriit Kanatami is the national representative organization for the 65,000 Inuit who live in Canada, the majority of whom live in Inuit Nunangat, our homeland. About 65% of our population still live in our homeland, and 35% now live outside of Inuit Nunangat. Our homeland encompasses 51 communities, nearly a third of Canada's landmass and 50% of its coastline.

ITK is governed by the elected leaders of the Inuvialuit Regional Corporation, Nunavut Tunngavik Inc., Makivik Corporation and the Nunatsiavut Government.

These four Inuit representational organizations and governments are Inuit rights holders under section 35 of the Constitution, having negotiated comprehensive Inuit-Crown land claim agreements between 1975 and 2005. It is therefore an appropriate and positive development that the Crown engaged Inuit rights holders in the development of Bill C-92. ITK helped facilitate regional engagement with the Government of Canada throughout this process through our national governance structure.

Too many Inuit children and youth have been and continue to be placed in care because of issues of neglect that can largely be attributed to the lack of attention to addressing social and economic inequities among Inuit. Because of the limited number of foster homes, professional services and residential care facilities throughout Inuit Nunangat, children are often sent outside of their communities and/or regions to be placed in care. As a consequence, far too many of our children are unable to participate in our culture and society and as members of our communities.

In July 2018 ITK created a working group to provide input, review documentation and provide recommendations related to the proposed federal legislation to the ITK board of directors. The working group included representation from Nunavut Tunngavik, the Inuvialuit Regional Corporation, the Nunatsiavut Government, the Nunavik Regional Board of Health and Social Services on behalf of Makivik Corporation, Pauktuutit Inuit Women of Canada and the Inuit Circumpolar Council of Canada.

ITK worked with the Government of Canada as well as the Assembly of First Nations and the Métis National Council to co-develop options for federal legislation to address the protection of Inuit children.

Through the input of ITK's working group and the engagement session organized by Pauktuutit, Inuit developed and submitted to Indigenous Services Canada a series of priorities for child protection. They included doing whatever is possible to keep children with their immediate and extended families, a goal reflected in clauses 15 and 16; ensuring that all care provided to Inuit children and families is culturally appropriate, as reflected in clauses 9 and 11; ensuring that Inuit children and youth living outside of Inuit Nunangat are identified as Inuit and are provided with culturally appropriate care, which is reflected in clauses 9, 11 and 28; ensuring that Inuit children and youth sent outside of Inuit Nunangat for specialized care remain in contact with their culture and home community, which is reflected in clauses 9, 10, 11 and 17. Inuit also called for the legislation to be outcomes-focused, distinctions-based, evidence-based and reflective of Inuit self-determination.

While much of what Inuit proposed was incorporated into Bill C-92, ITK is requesting an amendment to clause 28 of the bill, which speaks to information agreements. We know that indigenous children aged 0 to 14 make up 7.7% of all children in Canada yet represent 52% of children in foster care in private homes. However, with the limited data available in public reports, it is not possible to readily determine how many Inuit children have active statuses within child welfare services both within and outside of Inuit Nunangat.

Therefore, ITK requests that paragraph 28(a) be amended to ensure that data gathered on indigenous children in care are disaggregated to clarify whether they are first nations, Inuit or Métis, and in the case of Inuit, that their affiliated land claim organization be identified. This would enable service providers to connect with and serve notice to the Inuit land claim organizations so that Inuit children and youth can continue to receive the benefits they are entitled to under their respective land claim agreements.

At a high level, there is consensus across Inuit Nunangat about how child welfare services would ideally be delivered within Inuit communities; however, none of the regions has been able to make a significant shift towards this vision on a system-wide scale. Bill C-92 can help us do so.

The status quo is completely unacceptable. There may be systems that may work and there may be fears about creating new solutions or interventions that improve systems, but in the end we have to figure out a way to ensure that this broken system can be repaired and that indigenous and Inuit self-determination can be the focal point for the new way in which we think about how child services are delivered.

Nakurmiik.

[The Chair, Liberal, MaryAnn Mihychuk]

Very good, thank you very much.

Now it's on to the Sandy Bay First Nation in Manitoba with a new model that they've been using.

Thank you, Chief. Go ahead anytime.

[Chief Lance Roulette, Sandy Bay First Nation]

Thank you once again to the standing committee, for the third time, for being able not only to present our issues but also to get feedback in the Q and A process. I thank you very much for that.

We at Sandy Bay have been very proactive in our model of child reform and bringing our children home. We were successful not because of the issue of legislation but because of partnerships and networking with the agency that we have. I have with me one of the board members Tim Catchaway, and our ED, Richard De La Ronde from CFS, who will be able to give you more of an in-depth idea of how we became very successful.

As has been noted in the past, over the last two years we were able to bring home more than 50% of our children in care. On reserve we have kids that are 100% in culturally centred homes, and off reserve probably around 70% to 78% are in indigenous homes. Once again, being able to move that envelope forward was based on the issue of relationship building, as was being able to understand the barriers that we have as a first nation, mainly in the area of housing, which is still a continuing barrier and will always be a continuing barrier until we can once again solidify our forefronts.

With that being said, I would like to turn the microphone over to Mr. De La Ronde. He'll be able to give you more of that presentation.

Thank you very much.

[Richard De La Ronde, Executive Director, Child and Family Services, Sandy Bay First Nation]

Good morning.

It's an honour for me to be here. I'll try to bring an administrative perspective to you on Bill C-92 and what we hope it means for an agency implementing that legislation.

As Chief Roulette has mentioned, through what I'll call convenient interpretation of provincial acts, we've been able to return approximately 50% of our children in the last two years. We've gone from approximately 600 children in care to approximately 298. That was through our interpretation of standards and legislation that were actually in direct contradiction sometimes, because the rules wouldn't allow certain things.

One thing we find is that Manitoba is a unique province in terms of devolution and of services being turned over to first nations. We still operate within the context of original provincial legislation as drafted in the 1980s as we move forward with customary care, which has the community involved in decision-making around what happens to families, and resource sharing, whereby you have housing, education, health and the chief and council as parts of a customary committee in which we sit down together and make plans around how each service delivery body can contribute to the case plan for families in the community.

In addition, there's the block funding model, which your government more or less does already. Our federal funding flows directly to us. On the provincial side it flows through an authority that we're dealing with as well, because we don't think it's necessary for our funding to flow through an aboriginal authority to us, which would involve administration fees. We see such an authority as an extension of government, another level of bureaucracy that's unnecessary.

We deal with those kinds of things. Your government, as I said, is already there in terms of how our funding flows, and we're hoping that this bill will allow first nations, instead of being in contradiction of legislation and standards, to begin to develop their own, which would allow us to continue our unique way of providing services on reserve as they pertain to our families.

We're hoping that such a bill would mean that regardless of where children reside, whether they're on or off reserve, they're funded 100%, that the system is 100% and we get away from the sixty-forty split in Manitoba whereby the feds fund us 40% and the province funds us 60%. That is based on cases in which children are brought into care, if you aren't familiar with it.

We're hoping that Bill C-92 addresses this and that, regardless of where our children are, we are a federal responsibility and there are mechanisms in place for us to continue our own service delivery model and serve what has been mentioned, the best interests of children in care.

I know there are some documents such as “Bringing our Children Home” out there, and for Sandy Bay CFS that means something different, in terms of best interests. We've had discussions with our chief and council about whether the reserve is the best place for our children when there is no housing, high unemployment, huge health risks, gangs and drugs. Is that the best place to bring children home?

Child and family services is sometimes the dumping ground for other services, such as justice. They seem to think that child welfare can solve all of those problems, when we're currently certainly not equipped to address socio-economic conditions on first nations.

Through our customary care model and the sharing of resources, we can certainly change the outlook for kids in care. From an administrative service delivery perspective, Bill C-92 is something we're very excited about.

There are some cautionary things that we're also afraid of. Not every first nation in Manitoba has the relationship we have with our chief and council, and there is certainly a risk of agencies being enveloped by their chief and council. When you have elections every two years and faces change every two years, that can certainly be detrimental to the continuity of service of a child welfare agency. Be mindful of that. We're certainly mindful of it.

We're hoping—and it has already been documented—that Bill C-92 will supersede any provincial or federal legislation.

There was fear that such a bill would only apply on reserve, and then agencies would be forced to implement both provincial legislation and federal legislation. People would receive different services depending on where they were coming into contact with the system. We're being mindful of that, but we are highly optimistic about Bill C-92.

[The Chair, Liberal, MaryAnn Mihychuk]

Very good.

The questioning now goes to MP Yves Robillard, probably in French. If you need it, put your earpiece in.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

My next questions are for Mr. Awashish and Ms. Fournier.

In previous meetings, we heard some criticism regarding the bill, because it doesn't touch upon funding. Should the bill deal with funding or should it be based on indigenous communities' needs, and should funding decisions be made by the federal government and the provinces?

[Grand Chief Constant Awashish]

Thank you for the question.

As you say, it would indeed be beneficial if provinces were to help with funding. Currently, we fall under federal jurisdiction. Apart from a few special projects, provinces do not fund programs and services for first nations. This is certainly a concern of ours.

I will give you an example. We signed an agreement under subsection 37.5 of the Youth Protection Act of Quebec. For those of you who do not know of this agreement, we have enjoyed complete autonomy in terms of youth services since January 29, 2018, after more than 15 years of negotiations.

Two of our communities are autonomous and are situated in a certain town, but people are starting to move to other urban centres. They are therefore out of our system and we would like to offer them our services, but we don't have the necessary funding to do so in other cities.

We are pleased with the bill's orientation. In general, we are going in the right direction. People are talking about reestablishing relationships between nations, between the federal government and indigenous governments. I believe that reconciliation happens slowly, step by step, one victory at a time, but there remains the question of funding. How are we going to meet all the needs of first nations? I don't think we will be able to provide an answer today, but we will have to think about it. At the very least, there has to be some sorts of promise in the bill that will become binding.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Obviously, by passing this bill we wish to ensure its successful implementation in the years to come. In order to do so, it will be important to have the necessary means to collect data to be able to measure that success.

How can we better support our communities in order to collect that data throughout the process?

[Grand Chief Constant Awashish]

The Conseil de la nation atikamekw has a data collection system. Once again, it is a question of cost. We have to hire staff to set up the systems, give training and do follow-ups so that people are well informed about data collection.

In Quebec, the province is responsible for data collection. We wanted to have the same system, but there was a problem which was solved in the past few months. Ms. Fournier is better able to speak to this than I am, as she is currently handling that file.

[Anne Fournier]

The data collection system has been a thorny issue in setting up a separate atikamekw system. We wanted to have our own data collection system. The provincial government was against it, because it is responsible for funding as per the agreement signed under section 37.5 of the Youth Protection Act.

Because we were refused funding for an independent data collection system that would have been useful and would have been in lockstep with our youth protection system in every way, we are forced to use the provincial system, which is called Projet intégration jeunesse, or PIJ. This means we have to be flexible and we are currently negotiating with the province. The data that the province collects is very useful within the provincial system, but that same data is not adapted to the atikamekw system that we use currently.

We will send you a brief on this issue. For example, the Atikamekw collect information indicating whether the child has been placed in an atikamekw or non-atikamekw family. This type of data, however, is not collated by the province. It is, however, very important for us to have it.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

One final question.

During his testimony, Minister O'Regan indicated that approximately 65 meetings were held with representatives from indigenous communities.

Did you directly or indirectly take part in those consultations? What can you tell us about the consultation process?

[Anne Fournier]

We did indeed take part in the consultation process and we provided a brief. We thought the consultation process was well carried out. We appreciated being consulted. We were able to express our ideas freely. We were pleased.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

The questioning now moves to MP Kevin Waugh.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you, Chair, and welcome to all three groups. This is like home for all three of you.

I will start with the ITK.

Mr. Obed, you talked about paragraph 28(a). That seems to be a thorn in your side, for very good reasons. Just expand on that for the committee, if you don't mind.

[Natan Obed]

As it currently stands, we have incomplete data about how many Inuit are in care. That extends within jurisdictions within the Inuit homeland and also across southern Canada.

Having a federal statute that demands that there be a distinctions-based way of identifying children in care systems would allow for us, for Inuit—however service delivery happens in each one of the Inuit regions or in southern jurisdictions—to provide the type of care that upholds the rights of Inuit children. That is a huge challenge for us right now, because if a system isn't identifying Inuit within its jurisdiction in service delivery, there is absolutely no way that their indigenous rights can be upheld and that services and the connection to community can be provided.